Citation Nr: 1323792 Decision Date: 07/25/13 Archive Date: 08/06/13 DOCKET NO. 11-22 521 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an effective date prior to October 5, 2004 for the grant of service connection for residuals of reflex sympathetic dystrophy (RSD) and secondary conditions thereof, to include left arm neuropathy. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. W. Loeb INTRODUCTION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran served on active duty from April 1986 to May 1994. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida where the RO granted service connection and assigned an initial effective date of October 5, 2004. This case was remanded in March 2013 by the Board of Veterans' Appeals (Board) to the Department of Veterans Affairs (VA) Regional Office in St. Petersburg, Florida (RO) to afford the Veteran an opportunity to submit additional evidence or argument in support of her claim and to have the RO/AMC readjudicate her claim de novo, with consideration of newly submitted evidence as potentially supportive of the non-finality of the November 1994 rating decision that denied service connection for left arm neuropathy. The Veteran testified at a personal hearing before the undersigned Acting Veterans Law Judge sitting in Washington, D.C. in May 2012, and a transcript of the hearing is of record. FINDINGS OF FACT 1. The Veteran's original claim for service connection for neuropathy of the left arm was received by VA on May 20, 1994; the claim was denied by rating decision in November 1994 and notice of the denial was sent to the address of record later in November 1994. The letter was not returned as undeliverable; and, as the Veteran did not timely appeal, the rating decision became final. 2. The next correspondence from the Veteran relevant to a claim for RSD was received by VA on October 5, 2004. 3. A March 2008 rating decision reopened the claim for service connection for residuals of RSD and granted service connection effective October 5, 2004, with the assignment of a 100 percent rating. 4. Prior to receipt of the Veteran's claim on October 5, 2004, there were no pending requests for entitlement to service connection for RSD that remained unadjudicated. CONCLUSION OF LAW The criteria for an effective date earlier than October 5, 2004 for the award of service connection for residuals of RSD have not been met. 38 U.S.C.A. §§ 5107, 5110 (West 2002); 38 C.F.R. §§ 3.102, 3.160(c), 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist The Board has considered the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 and Supp. 2012). The regulations implementing VCAA have been enacted. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103. See also Quartuccio v. Principi, 16 Vet. App. 183 (2002). After having carefully reviewed the record on appeal, the Board has concluded that the notice requirements of VCAA have been satisfied with respect to the issue decided herein. The notice and assistance provisions of VCAA should be provided to a claimant prior to any adjudication of the claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the RO sent the Veteran a letter in October 2004, prior to adjudication, which informed her of the requirements needed to reopen a claim for service connection. Service connection was subsequently granted for RSD by rating decision in March 2008, which assigned a 100 percent rating effective October 5, 2004. Although the Veteran was not notified of the requirements to establish entitlement to an earlier effective date until later, the VA General Counsel has held that 38 U.S.C.A. § 5103(a) does not require VA to provide notice of the information and evidence necessary to substantiate newly raised or "downstream" issues, such as a claim for an earlier effective date following the initial grant of service connection for a disability, in response to notice of its decision on a claim for which VA has already given the appropriate section 5103(a) notice. See VAOPGCPREC 8-2003 (Dec. 22, 2003). The appropriate notice has been given in this case with respect to the earlier effective date claim on appeal. In accordance with the requirements of VCAA, the October 2004 letter informed the Veteran what evidence and information she was responsible for obtaining and the evidence that was considered VA's responsibility to obtain. Additional private evidence was subsequently added to the claims file after the October 2004 letter. In compliance with the duty to notify the Veteran of what information would substantiate her claim, the Veteran was informed in an October 2008 letter of the criteria for assignment of an effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA requires VA to provide a medical examination when such an examination is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159 (2012). The Board concludes an examination is not necessary in connection with this earlier effective date claim, because the examination could not show evidence of the Veteran's past disability. The Board concludes that all available evidence has been obtained and that there is sufficient medical evidence on file on which to make a decision on the issue decided on appeal. The Veteran has been given ample opportunity to present evidence and argument in support of her claim, including at her May 2012 hearing. All general due process considerations have been complied with by VA, and the Veteran has had a meaningful opportunity to participate in the development of the claim. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); 38 C.F.R. § 3.103 (2007). As part of its present decision, the Board has reviewed the record in regard to whether the Veteran was afforded her due process rights in the development of evidence through testimony. At the May 2012 hearing, the Veteran was afforded an extensive opportunity to present testimony, evidence, and argument. The transcript reveals an appropriate colloquy between the Veteran and the Acting Veterans Law Judge (AVLJ), in accordance with Stuckey v. West, 13 Vet. App. 163 (1999) and Constantino v. West, 12 Vet. App. 517 (1999) (relative to the duty of hearing officers to suggest the submission of favorable evidence). The transcript also reflects that the AVLJ conducted the hearing in accordance with the statutory duties to "explain fully the issues and suggest the submission of evidence which the claimant may have overlooked and which would be of advantage to the claimant's position," pursuant to 38 C.F.R. § 3.103(c)(2), as recently explained by the Court in Bryant v. Shinseki, 23Vet. App. 488 (2012). Analysis of the Claim According to the applicable regulations, the date of entitlement to an award of service connection is the day following separation from active service or the date entitlement arose, if the claim is received within one year after separation from service; otherwise, it is the date of receipt of claim, or date entitlement arose, whichever is later. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400 (emphasis added). Generally, an appeal to the Board is initiated by a notice of disagreement (NOD) and completed by a substantive appeal after a statement of the case (SOC) is furnished to the appellant. 38 U.S.C.A. § 7105(a) (West 2002). In general, there must be a decision by the RO, the claimant must express timely disagreement with the decision (by filing an NOD within one year of the date of mailing of notice of the RO decision), VA responds by explaining the basis of the decision to the claimant (in the form of a SOC), and finally, the appellant, after receiving adequate notice of the basis of the decision, completes the process by stating his argument in a timely-filed substantive appeal. See 38 C.F.R. §§ 20.200, 20.201, 20.202, and 20.204. The term "finally adjudicated claim" means an application, formal or informal, which has been allowed or disallowed by the agency of original jurisdiction, the action having become final by the expiration of one year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is earlier. 38 C.F.R. § 3.160(d); 38 C.F.R. §§ 20.1103, 20.1104. There are only two exceptions to the rule of finality of VA decisions, i.e., challenges based on clear and unmistakable error (CUE) in a prior, final decision (38 U.S.C.A. §§ 5109A, 7111), and reopened claims based on new and material evidence (38 U.S.C.A. § 5108). Cook v. Principi, 318 F.3d 1334, 1339 (Fed. Cir. 2002). The Board notes the Veteran had originally argued CUE, but withdrew this aspect of her appeal during her 2012 hearing before the Board. With regard to reopened claims, the date of an award of service connection based on a claim reopened after final disallowance will be the later of the date of receipt of the claim or the date entitlement arose. See 38 C.F.R. § 3.400. The facts of this case are largely undisputed. The Veteran filed an initial claim for service connection for neuropathy of the left arm received by the VA on May 20, 1994. On her application for benefits she listed a Mississippi address. She was afforded a VA examination in Columbus, Mississippi in connection with her claims in July 1994. She reported to this examination, and still maintained her address in Mississippi. The claim was denied by rating decision in November 1994, and notice of the denial was sent by VA to the Veteran's last known address of record in Mississippi later in November 1994, which included a copy of the rating decision. The letter was not returned to VA as undeliverable, and the Veteran did not timely appeal. The next correspondence from the Veteran was a letter received by VA in January 1996 that related to a claim for another disability. It is noteworthy, however, that the 1996 correspondence for the first time listed a new address in Florida. The next correspondence from the Veteran relevant to a claim for residuals of RSD was received by VA on October 5, 2004 (from a Florida address). A March 2008 rating decision granted entitlement to service connection for RSD and assigned a 100 percent rating effective October 5, 2004. The Veteran timely appealed this effective date. The Veteran disputes the effective date based on various theories. The Veteran has contended, including at her May 2012 hearing, that the effective date should be retroactive to May 20, 1994, the date of the original claim for neuropathy of the left arm, because the neuropathy of the left arm was part of her RSD. She contends RSD is a chronic disease process that began in the military, but was not accurately diagnosed until years later given the nature of the disease. Even so, she indicates her left arm neuropathy is part of the disease process. In fact, her current service connected disability of RSD includes manifestations of left arm neuropathy. As such, she believes the May 20, 1994 date of claim should be the appropriate date considered in calculating the effective date. At times the Veteran indicates she does not know why she never appealed the original November 1994 denial. At other times, she insists she never received notice of the denial. She contends that she moved from Mississippi to Florida in July 1994 and that notice of the November 1994 rating decision was not forwarded to her new address. She has cited to multiple documents to show that she was living in Florida when the November 1994 notice was sent out. Consequently, she alternatively believes that the May 1994 claim has never been denied and was pending when service connection was granted for RSD by rating decision in March 2008. Another alternative theory the Veteran raises is that even if she received notice of the November 1994 denial, she was too sick and wrapped up in medical treatment to deal with an appeal. Once her health stabilized, she claims she again pursued this appeal. The Board has considered all the Veteran's various theories of entitlement to an earlier effective date and, for reasons to explained immediately below, finds the Veteran is not entitled to an earlier effective date. Again, for the grant of entitlement to service connection, the effective date is the day following separation from active service or the date entitlement arose, if the claim is received within one year after separation from service; otherwise, it is the date of receipt of claim, or date entitlement arose, whichever is later. 38 C.F.R. § 3.400. The date of an award of service connection based on a claim reopened after final disallowance will be the later of the date of receipt of the claim or the date entitlement arose. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400 (emphasis added). The Veteran has maintained that her RSD began during active service. Thus, the pertinent inquiry here depends largely on the calculation of the appropriate date of claim in this case. As noted above, the Veteran disputes the finality of the November 1994 decision denying entitlement to service connection for left arm neuropathy. A final rating decision would serve as a bar to an effective date earlier than the date of the claim to reopen. See 38 U.S.C.A. §§ 5110, 7105. VA regulations provide that "notice" means written notice sent to a claimant or payee at his or her latest address of record. 38 C.F.R. § 3.1(q). The Court of Appeals for Veterans Claims (Court) has ruled that there is a "presumption of regularity" under which it is presumed that government officials have properly discharged their official duties. Clear evidence to the contrary is required to rebut the presumption of regularity. Ashley v. Derwinski, 2 Vet. App. 307 (1992), (citing United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926)). The Court has also specifically held that a statement by a claimant, standing alone, is not sufficient to rebut the presumption of regularity in VA operations. Id. While Ashley dealt with regularity of procedures at the Board, in Mindenhall v. Brown, 7 Vet. App. 271 (1994), the Court applied this presumption of regularity to procedures at the RO. Under Mindenhall there is a presumption of regularity of the administrative process when there is a lack of clear evidence to the contrary. Here, there is no clear evidence to the contrary to rebut the presumption of regularity. The Veteran indicated a Mississippi address in her May 1994 claim, and appeared for a July 1994 VA examination in Mississippi where her address was still reflected as a Mississippi address. It was not until January 1996 that the Veteran notified the VA of a new address in Florida. The Board notes the Veteran's recent submissions of evidence to substantiate she moved prior to the issuance of the November 1994 denial, but it is ultimately the Veteran's responsibility to ensure VA has her most current address. See, e.g. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (holding the duty to assist is not a one-way street and if a veteran wishes help in developing his claim, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining putative evidence). The Board also finds noteworthy that the Veteran has repeatedly contradicted herself on whether she received notice of the 1994 denial or not. The Veteran noted in a March 2009 statement that she was notified of the rating decision denying her claim for service connection for left arm neuropathy on November 22, 1994, which is the date that the letter was sent. She contended in an April 2013 statement that she never acknowledged receipt of this letter, but was merely quoting from VA correspondence that referred to the letter. She testified before the Board in May 2012 that she did not know exactly why she never appealed the 1994 decision, but it was probably related to the state of her health at that time. In any case, the Board finds the decision is final. That is, the Board presumes that the Veteran was issued notice of, and received a copy of, the November 1994 denial letter, along with a copy of the rating decision. This is especially true because the notice was sent to the Veteran's latest address of record and there is no indication in the record that the notice was returned to the RO as undeliverable. Because of the presumption of regularity noted above, it does not matter for VA purposes that the Veteran may have already moved to Florida and notified the state of Florida of the move by the time that the November 1994 rating action was issued. There is no evidence on file that she notified VA of the move prior to November 1994. Because a timely appeal of the November 1994 denial letter was not received, the November 1994 rating decision must be considered final. Consequently, as this case involves a claim to reopen after final disallowance, the effective date would be the later of the date of receipt of claim or the date entitlement arose, which would be October 5, 2004. Therefore, an effective date prior to October 5, 2004 for entitlement to service connection for residuals of RSD is not warranted. The Veteran testified at her May 2012 personal hearing in Washington, D.C., that although she does not know exactly why she did not timely appeal the November 1994 rating decision, she was having a lot of problems around that time, including illness. Under the rules governing effective dates, there is one exception carved out for applications for disability pension claims, which indicates if within one year from the date on which the veteran became permanently and totally disabled he files a claim for a retroactive award and establishes that a physical or mental disability, which was not the result of the veteran's own willful misconduct, was so incapacitating that it prevented him from filing a disability pension claim for at least the first 30 days immediately following the date on which the veteran became permanently and totally disabled, the disability pension award may be effective from the date of receipt of claim or the date on which the veteran became permanently and totally disabled, whichever is to the advantage of the veteran. 38 C.F.R. § 3.400(b)(ii)(B). The Board finds the exception inapplicable here. For one, this exception is limited under the law to disability pension claims only and is not applicable to service connection claims. Cf. 38 C.F.R. § 3.400(i)(1). The Board further finds, however, there is no objective evidence on file that the Veteran was physically or mentally unable to file an appeal within the year following issuance of the November 1994 denial. With regard to the Veteran's contention that the May 20, 1994 claim for service connection for left arm neuropathy should also be considered her initial claim for RSD, the Board finds this particular question moot as, in any case, the Board finds the claim was finally decided in an unappealed November 1994 rating decision. The Board realizes the Veteran sincerely believes her RSD began while on active duty. Effective dates, however, are awarded based on both consideration of the date of claim and date entitlement arose, whichever is later. See 38 C.F.R. § 3.400. Thus, even assuming RSD began during her active military service, the appropriate calculation of the date of claim in this case is October 5, 2004 for reasons stated above. There is no provision in which the Veteran is entitled to an earlier effective date. The preponderance of the evidence is against the claim denied above, and under these circumstances the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3. See also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER An effective date prior to October 5, 2004 for service connection for residuals of RSD is denied. ____________________________________________ SHEREEN M. MARCUS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs